BILL ANALYSIS �
AB 1735
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
AB 1735 (Hall) - As Amended: April 23, 2014
SUBJECT : Nitrous oxide: dispensing and distributing.
SUMMARY : Declares that anyone who knowingly dispenses or
distributes nitrous oxide (NOS) to a person who is going to use
the NOS in an illegal manner, who then proximately causes great
bodily injury or death to himself, herself, or another person,
is guilty of a misdemeanor, and sets forth documentation
requirements for the sale of NOS. Specifically, this bill :
1)States that a person who dispenses or distributes NOS to a
person, knowing or having reason to believe that the person is
going to use NOS in an illegal manner, as specified, who then
proximately causes great bodily injury or death to himself,
herself, or another person, is guilty of a misdemeanor, and
shall be punished by imprisonment in a county jail, not to
exceed six months, or by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment.
2)Clarifies that this bill does not preclude prosecution under
any other law.
3)Requires a person who dispenses or distributes NOS to record
each transaction as follows:
a) The person dispensing or distributing NOS shall require
the purchaser to sign a written or electronic document and
provide a complete residential address and present a valid
government-issued photo identification;
b) The person dispensing or distributing NOS shall sign and
date the document and shall retain the document at the
person's business address for one year from the date of the
transaction; and,
c) The person shall make the documents available during
normal business hours for inspection and copying, upon
presentation of a duly authorized search warrant, by
officers or employees of the California State Board of
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Pharmacy or of other law enforcement agencies of this state
or the United States.
4)Requires the document used to record each transaction to
inform the purchaser of all of the following:
a) That inhalation of NOS outside of a clinical setting may
have dangerous health effects;
b) That it is a violation of state law to possess NOS or
any substance containing nitrous oxide, with the intent to
breathe, inhale, or ingest it for the purpose of
intoxication; and,
c) That it is a violation of state law to knowingly
distribute or dispense NOS or any substance containing NOS,
to a person who intends to breathe, inhale, or ingest it
for the purpose of intoxication.
5)Exempts the following from the documentation requirements in
this bill:
a) Any person who administers nitrous oxide for the purpose
of providing medical or dental care, if administered by a
medical or dental practitioner licensed by this state or at
the direction or under the supervision of a practitioner
licensed by this state;
b) The sale of NOS contained in food products for use as a
propellant; and,
c) The sale or distribution of NOS by licensed wholesalers
or manufacturers, as specified.
6)States that no reimbursement is required by this bill because
the only costs that may be incurred by a local agency or
school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction,
changes the penalty for a crime or infraction, or changes the
definition of a crime.
EXISTING LAW :
1)Provides that any person who possesses NOS or any substance
containing NOS with the intent to breathe, inhale, ingest for
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the purposes of causing a condition of intoxication, elation,
euphoria, dizziness, stupefaction, or dulling of the senses,
or for the purposes of, in any manner, changing, distorting,
or disturbing the audio, visual, or mental processes, or who
knowingly with the intent to do so, is under the influence of
nitrous oxide is a guilty of a misdemeanor punishable by
imprisonment in a county jail by a term not to exceed six
months, by a fine not to exceed $1,000, or by both
imprisonment and a fine. (Penal Code (PC) Section 381b)
2)States that every person who sells, furnishes, administers,
distributes, or gives away, or offers to sell, furnish,
distribute, or give away a device, canister, tank, or
receptacle either exclusively containing NOS, or exclusively
containing a chemical compound containing NOS to a person
under 18 years of age is guilty of a misdemeanor punishable by
imprisonment in a county jail by a term not to exceed six
months, by a fine not to exceed $1,000, or by both
imprisonment and a fine. The court shall consider ordering
community service as a condition of probation. (PC 381c (b))
3)Establishes the California Board of Pharmacy to administer and
enforce the provisions of the Pharmacy Law. (Business and
Professions Code (BPC) Section 4000 et seq.)
4)Defines a "wholesaler" as a person who acts as a wholesale
merchant, broker, jobber, customs broker, reverse distributor,
agent, or a nonresident wholesaler, who sells for resale, or
negotiates for distribution, or takes possession of, any
dangerous drug, as specified. A wholesaler must have a
license from the California Board of Pharmacy. (BPC 4043,
4160).
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill makes it a crime for someone
to sell NOS to another person that the seller knows or has
reason to believe will use it for the purpose of getting high,
and who then causes serious injury or death to him or herself
or others while under the influence. This bill also requires
the seller to check the buyer's government-issued ID, obtain
his or her signature and residential address in writing, see
a, and provide a disclosure about risks and laws pertaining
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to NOS. This bill is sponsored by the Los Angeles County
Sheriff's Department and the California State Sheriff's
Association.
2)Author's statement . According to the author's office,
"Illegal and unsafe to ingest in a nonclinical setting,
Nitrous Oxide 'NOS,' has resulted in violent assaults, sexual
assaults, overdoses and traffic collisions. Often times NOS is
advertised on social media through illegal parties. The
increasing awareness and monitoring of social media for
preventive measures and intelligence led policing to pre-empt
illegal drug parties. There are harmful effects on people
using NOS and an environmental impact of this gas.
"There are certain distributors who are selling NOS for
recreational use or parties. This legislation would crack
down on these unsafe practices."
3)Nitrous oxide . Nitrogen oxide (N2O), more commonly known as
'laughing gas' or NOS, is colorless, nonflammable gas with a
slightly sweet odor, and is stable at room temperature.
NOS is legitimately used for medical and dental anesthesia and
analgesia, although it is abused as a recreational drug. It
is also used as food processing propellant (e.g. Easy Cheese,
whipped cream), and is widely utilized diverse industries such
as semiconductor manufacturing, analytical chemistry, chemical
manufacturing, and even rocketry and auto racing.
NOS is regulated by the U.S. Food and Drug Administration
(FDA) as a prescription drug, and there are federal standards
for its manufacture and distribution, and safety requirements
for medical gas containers.
4)Nitrous oxide abuse . NOS has substantial potential for abuse.
According to the Compressed Gas Association (CGA), NOS'
painkilling and numbing qualities begin to take effect when
the gas is inhaled at concentrations of 10%. At higher
concentrations, a sense of well-being or intoxication may be
experienced.
NOS readily displaces air, and can quickly lead to
asphyxiation. Prolonged exposure to high levels of NOS, or a
series of inhalations without breathing clean air between
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inhalations, can result in death.
NOS that is inhaled over a long period of time can also lead
to a vitamin B12 deficiency. When the level of vitamin B12 in
the body is reduced, the red blood cell count is lowered,
anemia results, and nerves degenerate. A vitamin B12
deficiency may cause a person to: have painful sensations in
the arms or legs, have an unsteady walk, become unbalanced and
tend to fall over, feel or appear to be irritable, or suffer
intellectual deterioration.
5)Auto supply stores . According to the sponsors, this bill is
targeted at primarily at auto supply stores, which are the
primary source of NOS for personal recreational use. In the
automotive industry, NOS is used a fuel additive used to
increase the amount of oxygen available for the engine to
burn, thereby increasing power. It is also in this industry,
as the LA County Sheriff's reports note, that automotive shops
are selling bulk quantities of the gas for use at parties.
In 2013, federal authorities performed a 15-month
investigation that found car racing supply stores in Orange
County, Los Angeles County and the Inland Empire have been
selling NOS to customers who used the gas to get high, which
has also led to accidents or overdose.
This bill would make it a crime to sell NOS to someone the
seller knows, or has reason to know, will use it to get high,
and then, while intoxicated, injures or kills him or herself
or others. This bill will also require sellers to alert
purchasers to current law on the abuse of NOS and potential
adverse effects, check the purchaser's identification and
record the purchaser's complete residential address. This
also bill requires this signed record to be retained for one
year and made available during normal business hours for
inspection and copying, upon presentation of a duly authorized
search warrant, by officers or employees of the California
State Board of Pharmacy or of other law enforcement agencies
of this state or the United States.
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This bill exempts licensed wholesalers and manufacturers from
the reporting requirements, as they are presently subject to
extensive recordkeeping requirements and have not been
implicated in the diversion activities this bill seeks to
curtail.
6)Technical amendment . The committee recommends clarifying that
wholesalers licensed by the Board of Pharmacy are exempt from
the reporting requirements of this bill.
Page 3, line 27, after "a," strike out "licensed wholesaler"
and insert wholesaler licensed by the Board of Pharmacy"
7)Arguments in support . The Los Angeles County Sheriff's
Department writes, "Nitrous oxide use has spiked in the last
several years. Social media has become a popular place to
advertise parties that include nitrous oxide. My Department
has investigated murder, assault, rape, vehicle collisions,
and other crimes that surround the use of nitrous oxide.
"Oftentimes, businesses that advertise themselves as auto
parts suppliers conduct a large business as distributors of
nitrous oxide which is used at large parties advertised on
social media. Currently, that practice is not illegal;
however, Assembly Bill 1735 will help address this problem."
8)Arguments in opposition . The American Civil Liberties Union
writes, "[W]e are concerned about infringing on individual's
right to privacy in their purchases of lawful products by
requiring them to provide their name, address, and driver's
license information. People should not be required to provide
detailed personal information to purchase products. This is
not just an abstract privacy concern, but also a safety issue
because retailers and their employees could use the
information for unauthorized purposes. Finally, the state
should not be requiring the gathering of personal information
without demonstrating a compelling need for that information
and showing that there are no less intrusive means to achieve
that interest."
9)Previous legislation . AB 1015 (Torlakson), Chapter 266,
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Statutes of 2009, made it a misdemeanor for a person to sell
or furnish to a person under the age of 18 years a canister or
device containing nitrous oxide or a chemical compound mixed
with nitrous oxide.
10)Double referred . This bill was heard by the Assembly Public
Safety Committee on March 25, 2014, and was passed on a 7-0
vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Department (sponsor)
California State Sheriff's Association (sponsor)
Opposition
American Civil Liberties Union
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301